FDP President Burkart wants arms deliveries via “good” states

discouraged. Incomprehensible. Too hesitant. Central politicians are currently not good hair on the Federal Council. In fact, the government’s decisions on arms deliveries to Ukraine seem contradictory. On the one hand, Switzerland lets the British go first when it comes to buying Swedish NLAW anti-tank missiles. London will presumably quickly pass it on to Ukraine.

In addition, Germany is allowed to export Leopard 2 tanks formerly used by Switzerland to various European countries. On the other hand, the State Secretariat for Economic Affairs (Seco) rejected two requests: Denmark is not allowed to deliver Piranha III tanks from Swiss army stocks to Kyiv. Ammunition for the Gepard anti-aircraft tank, which Germany wants to make available to Ukraine, also remains blocked.

As confusing as this may appear at first glance, the outrage can hardly be justified objectively. In the last two cases, the legal situation is clear. The War Material Act prohibits that Switzerland delivers war material to countries that are “involved in an internal or international armed conflict”.

And even governments that do not fall into this category and have received weapons from Switzerland are not allowed to export them to other countries at will. You must sign a non-re-export declaration. With this, the foreign government promises not to re-export the material imported from Switzerland. The law also requires this. The Seco had no choice but to reject the applications from Denmark and Germany.

Switzerland as a dirty child

Abroad, however, the decisions cause a lack of understanding. That is perfectly understandable. In representative democracies, a government with a parliamentary majority can change unpopular laws relatively easily. It is well known that Swiss mills grind more slowly. In view of the situation in Donbass, however, the reference to the inertia of the local political system may appear cynical to outsiders.

In any case, Switzerland is once again seen as Europe’s egotistical slob. Whether out of moral conviction, concern for Switzerland’s reputation or party-political marketing: In Berne there is no shortage of ideas as to how Switzerland could legally enable the export of ammunition and tanks to Ukraine.

Next week, for example, the FDP President Thierry Burkart wants to submit a proposal to Parliament. It is obviously not a secret plan. Three Sunday newspapers reported prominent about that. The demand sounds as simple as it is friendly: countries that share Switzerland’s values ​​and have a comparable export control regime should no longer have to sign a non-re-export declaration. Burkart said to the “NZZ am Sonntag”: “It cannot be that countries like Germany or Denmark cannot pass on weapons that they bought twenty years ago in Switzerland.”

Delegation of the decision abroad

International law requires neutral states to treat all warring parties equally when supplying war supplies. So Switzerland cannot ban exports to one warring party but allow them to another. In other words, if Seco allowed war material to be passed on to Ukraine, it would have to do the same in the case of Russia. Relaxing the War Material Act would not be a way out of this dilemma. Unless Switzerland were to give up its neutrality at the same time.

With Burkart’s advance, these neutrality law pitfalls could be circumvented more or less elegantly. The decision as to who receives weapons from Switzerland would be delegated to other countries. Passing on the weapons would be a matter for the buyer countries – but only for those who “share Switzerland’s values”.

The price question is which countries these are. Somehow, the unequal treatment of warring parties, which is inadmissible under neutrality law, would have to be replaced by permitted unequal treatment of importing countries that are not in an armed conflict. Implicitly this is already happening today. An appendix to the War Material Ordinance names 25 states that benefit from special treatment.

A Seco license is also required for the export of war material to these countries. However, if “only” armaments know-how is exported there, an individual permit does not have to be obtained each time. For the countries that are on the list, Seco has issued a so-called basic permit. Technology transfer to these states is generally permitted.

Apparently, this unequal treatment by neutral Switzerland has never led to serious diplomatic annoyances. Of course, that could change if the countries on the list were given the privilege of exporting war material bought in Switzerland to any country. That would smack of a division into “good” and “bad” states. Abroad, it would probably be registered exactly which countries the Federal Council puts on the list or removes from it.

Domestically, too, the potential for conflict would not be negligible. Where would the line be drawn? In the case of North Korea or Syria, the case would be clear. But what about borderline cases like Hungary or Poland? Both are currently among the 25 countries with preferential treatment. It is quite conceivable that a parliamentary majority would not appreciate this – for example because Budapest is not known for its tolerant treatment of homosexuals.

Flawless democracies are rare

In order to prevent the list of countries in the War Material Ordinance from being politicized, the federal government could fall back on “neutral” democracy indices. One of the best-known democracy rankings originates by the UK Economist Intelligence Unit (EUI). According to this, strictly speaking, there are only twenty “full democracies” in the world. In addition to Denmark and Germany, this also includes Taiwan, which China regards as a breakaway province.

On the other hand, countries like France, Spain and the USA do not make it into the list of flawless democracies. According to the EUI ranking, they are among the “incomplete democracies”. Israel is also in this drawer. Ukraine, on the other hand, is classified as a “hybrid regime” and, with rank 86 out of 167, ranks in the middle. Like China or Saudi Arabia, Russia is considered an “authoritarian regime”.

If the EUI’s Democracy Index were authoritative, Denmark or Germany could deliver war material bought in Switzerland to any country. Apart from the fact that the “Lex Burkart” would probably come too late for Ukraine, such a law would have far-reaching consequences. In theory, democratic countries could supply Swiss arms to dictatorships. But other scenarios would be more realistic.

With the proposed regime, there would be no recourse against the delivery of weapons of Swiss origin from countries like Germany to Israel or Taiwan. This would indeed achieve the intended goal. Switzerland would help democracies to defend themselves against their authoritarian neighbors. The price for this would probably be diplomatic upsets with Arab countries or China.

Parliament wanted it that way

If the Federal Council had a certain amount of leeway in its decisions, there would be no need for a list of “bad” and “good” states. Depending on the general geopolitical situation, the government could allow the re-export of war material in specific individual cases or – even with subtle arguments – prohibit it. In this way, the country’s foreign and security policy interests could be safeguarded without breaking too many dishes on the diplomatic stage.

Only: That is exactly what the indirect counter-proposal of the Federal Council to the so-called correction initiative envisaged. Article 22b would have allowed the government to override the legal provisions in “extraordinary circumstances”. However, Parliament did not want any of that in autumn 2021 to know. The “loophole” was closed by the legislature, probably not least in order to persuade the authors of the correction initiative to withdraw their initiative.

This happened with significant help from the Mitte parliamentary group. All the more irritating is the fact that the mantra is heard from this corner that the Federal Council should allow arms deliveries to Ukraine by means of emergency law. First, federal lawyers are of the opinion that the emergency law clause enshrined in the federal constitution cannot be applied. Secondly, with the tightening of the War Material Act, the Federal Council’s leeway was deliberately narrowed.

Now the party that is jointly responsible for this is demanding that the government fout about this law on a shaky legal basis. This suggests two conclusions: either some middle-level parliamentarians are surprised that there are consequences when they pass a law. Or, against their better knowledge, they put on a political show about arms exports to Ukraine.